Page:Harvard Law Review Volume 12.djvu/209

189 CONTRIBUTION BETWEEN PERSONS. 1 89 From his co-proprietor. Wooley v. Batte, 2 C. & P. 417. Roth were en- gaged together in lawful business, and the negligence of which they were guilty, in employing a servant from whose misconduct injury resulted, did not place them in such position that they were treated as wrongdoers, whose action against each other could only be founded in their community of wrong. The cases of Oakes v. Spaulding, 40 Vt. 347, and Spalding V. Oakes, 42 Vt. 343, relied on by the defendants, do not conflict with this. The parties to the transaction there were engaged in what was a wrongful act as against any one injured thereby, namely, keeping a vicious animal, and the neglect to take care of it, by reason of which it did in- jury, was not an act of nonfeasance merely ; the whole act of keeping it was one of misfeasance." In Ashhurst V. Mason,^ shares of a company were purchased and transferred (jiltra vires) to the name of a director in trust for the company. He then paid calls upon the shares, and the Vice- Chancellor (Sir James Bacon) held him entitled to contribution from the other directors who concurred in the transaction. In Herr v. Barber,^ Mr. Justice Hagner said (p. 556): — "The principle that there can be no contribution, at law, enforced by one tort-feasor against the other wrongdoers, is limited by the more mod- em authorities to cases where the transaction, out of which the judgment arises, involves moral turpitude." Although he properly declined in the case before him to allow contribution, because upon the facts there was a breach of trust having the elements of a deliberate, intentional wrong. In Ankeny v. Moffett,^ it was held (irre.spective of a statute there involved) that the rule that there can be no contribution among wrongdoers applies only where the person seeking the contribution must be presumed to have known that he was doing an illegal act. Accordingly, in that case, the court allowed contri- bution between two persons through whose negligence, or through that of their agents, a building in course of construction upon their property fell and injured a man. In Smith v. Ayrault,* there had been a recovery against Smith for infringement of a patent upon steam-pipe casing. Smith and Ayrault were partners, and the infringement had been committed 1 L. R. 20 Eq. 225 (1875). 2 2 Mackey, 545 (Supreme Court, District of Columbia, 1883). 8 37 Minn. 109 (1887) ; s. c. ^^^ N. W, 320.
 * 71 Mich. 475 (1888).